Pollards Hill Housing Association v Marsh
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KAY,Sir Anthony Evans,SIR ANTHONY EVANS,THE PRESIDENT |
| Judgment Date | 05 February 2002 |
| Neutral Citation | [2002] EWCA Civ 199 |
| Docket Number | B2/2001/0989 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2002 |
[2002] EWCA Civ 199
IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
CROYDON COUNTY COURT
(District Judge Fink)
The Royal Courts of Justice
The Strand
London
The President
Lord Justice Kay
Sir Anthony Evans
B2/2001/0989
MR J McDONNELL QC and MR T SISLEY (instructed by Goldkorn Mathias, 6 Coptic Street, London WC1A) appeared on behalf of the Appellant
MR A MANN QC and MR S MAUGER (instructed by Travers & Hamlins, Sceptre Court, 40 Tower Hill, London EC3N) appeared on behalf of the Respondent
Tuesday 5 February 2002
On 19 April 2001 the claimant, Pollards Hill Housing Association, obtained from District Judge Fink in the Croydon County Court an order against the defendant, granting it possession of premises at 6 Shropshire Close, Pollards Hill, Mitcham, which were occupied by the defendant and her children pursuant to an assured tenancy. The order was suspended on condition that the appellant did not allow a man called Stephen Millington to reside there, she did not invite him to visit the house and that she did all that she reasonably could, without resorting to violence, to prevent him from visiting the house. That order was to remain in force for four years. She now appeals, with permission from Keene LJ, against the making of that order.
In 1993 the defendant became the tenant of the house at 6 Shropshire Close. At that stage her landlord was the local authority and she was then a secure tenant. She had living with her her three children. The second child, a boy, was to be injured in a road traffic accident and thereafter had special educational needs. In about 1995 she started a relationship with Stephen Millington, subsequently giving birth to his child in June 2000. At the date of the hearing in the county court she was expecting another child, of whom Mr Millington would be the father. From about 1997 Mr Millington lived with the defendant, although he did not stay at the house every night of the week. In 1998 the claimant became her landlord and the tenancy became an assured tenancy. That tenancy commenced on 9 November 1998. The defendant was throughout the sole tenant. It will be necessary to return shortly to set out some of the terms of the tenancy, but it is convenient first to recount the subsequent history.
In January 2000 both the defendant and Mr Millington were arrested after the police discovered controlled drugs in the house, both cocaine and cannabis and over £6000 in cash. The drugs were found in both the bedroom and in the garage. In November 2000 the couple appeared before the Crown Court. Mr Millington pleaded guilty to possessing each of the drugs with intent to supply. He was sentenced to a total of five years' imprisonment. The prosecution then dropped similar charges against the defendant. In exercising her discretion whether to grant immediate possession, the district judge heard evidence and she found as a fact that the claimant was aware of the presence of the drugs in the premises.
On 15 December 2000 the claimant landlord served on the defendant a notice seeking possession of the premises. On 18 January 2001 proceedings were issued in the Croydon County Court for possession of the premises from the defendant. In the particulars of claim the claimant relied on grounds 12 and 14 of schedule 2 of the Housing Act 1988 as amended ("the Act"). These are the proceedings that give rise to this appeal against the order of District Judge Fink.
It is necessary at this stage to set out some of the relevant parts of the tenancy agreement. Clause 3.3 dealt with use of the premises by the defendant. By clause 3.3.2 the defendant agreed not to use the premises for immoral or illegal purposes, including selling, buying or distributing drugs. Clause 4 set out the defendant's rights under the tenancy. Clause 4.1 provided that the claimant had a right to occupy the premises for "so long as [she complied] with the terms of this Agreement" and had "proper respect for the rights of other tenants and neighbours." Clause 4.2 set out that the defendant would be an assured tenant and explained the steps which the claimant would have to take before possession could be obtained.
There then followed before clause 4.3 the following heading, which was in capital letters:
"The following are the only grounds and circumstances in which the association will serve notice and seek to recover possession."
Beneath that in bold type appeared "Grounds for possession" and then there were set out, as clauses 4.3–4.12, various grounds upon which the claimant could seek to recover possession. Cross-references to the grounds contained in schedule 2 of the Act were given. Clause 4.3 referred to non-payment of rent, relating it to ground 10; clause 4.4 referred to persistent delay in payment of rent, with reference to ground 11. Clause 4.5 provided for circumstances where the tenant or anyone living with her had broken or failed to conform with any one or more of the conditions of the tenancy, and related that to ground 12. Clause 4.6 related to causing deterioration of the premises. It specifically referred to "You or anyone living in the Premises" causing such deterioration and cross-referred to ground 13.
Clause 4.7, which is at the heart of this appeal, read:
"You or anyone living in or visiting the Premises have been guilty of conduct causing or likely to cause a nuisance or annoyance to others living, visiting or carrying out a lawful activity in the locality, or you have been convicted of using the Premises for immoral or illegal purposes or of an arrestable offence carried out at or in the locality of the Premises. (Ground 14)"
Clause 4.8 dealt with violence between partners occupying the premises, with reference to ground 14A. Clause 4.9 dealt with ill-treatment of any furniture provided under the tenancy, with a wrong reference to ground 17 (it should have been to ground 15). It made specific reference again to "You or anyone living in the Premises" ill-treating such furniture. Clause 4.10 dealt with obtaining the grant of the tenancy by false representation with reference to ground 17. Clause 4.11 then dealt with the situation where the tenancy had devolved under the tenant's will or on the tenant's intestacy. It is necessary to refer again to the precise way in which that is set out when dealing with the arguments advanced on behalf of the claimant housing authority. Clause 4.12 again referred to one of the grounds, ground 9, and dealt with the circumstances where the association sought to recover possession of the premises on the ground that suitable alternative accommodation was available.
There then appeared in capital letters "For the avoidance of doubt the association hereby declares that it will not seek to use ground 1,2,3,4,5,6, and 8 of schedule 2 Housing Act 1988 to obtain possession of the premises."
When the matter came before the district judge the claimant abandoned the claim pursuant to ground 12. That was because the requirement contained within the tenancy agreement referred to an obligation upon the tenant and there was at that point no reference to anyone else. Thus only ground 14 was pursued. The argument advanced in relation to ground 14 was that the conviction of Mr Millington, who was somebody residing in, or certainly visiting the house, gave rise to the circumstances envisaged by ground 14 and accordingly the right to possession was made out.
On behalf of the defendant, it was argued that clause 4.7 restricted that right and a comparison was made between the wording of clause 4.7, to which we have referred, and the wording of ground 14. Ground 14 reads:
"The tenant or a person residing in or visiting the dwelling house—
(a) has been guilty of conduct causing or likely to cause a nuisance or annoyance to a person residing, visiting or otherwise engaging in a lawful activity in the locality, or
(b) has been convicted of—
(i) using the dwelling-house or allowing it to be used for immoral or illegal purposes, or
(ii) an arrestable offence committed in, or in the locality of, the dwelling-house."
It was submitted on behalf of the defendant that the obvious distinction between 4.7 and ground 14 was that, when one came to consider the second limb, that part equivalent to (b) in ground 14, the wording restricted consideration to the tenant, described as "you" without any reference to anyone else living in or visiting the premises. It was submitted on behalf of the defendant that what had happened was that the claimant had, by drawing its tenancy agreement in this way, limited the circumstances in which ground 14 could be employed by its own tenancy agreement.
That argument was considered by the district judge. She came to the conclusion that when "you" was used in the second part of clause 4.7, it had to be read so as to give it the meaning "you or anyone living in or visiting the premises". The ground of appeal is, put simply, that the judge was wrong to reach that conclusion.
To complete the history before turning to the arguments advanced on each side in relation to that matter, the district judge, having decided that the matter did come within...
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